From Rawls to Habermas: Toward a Theory of Grounded Impartiality in Canadian Administrative Law

Osgoode Hall Law Journal 51:2 (2014), pp. 543-594

Osgoode Legal Studies Research Paper No. 7/2014

53 Pages Posted: 28 Jan 2014 Last revised: 27 Dec 2014

See all articles by Laverne Jacobs

Laverne Jacobs

University of Windsor - Faculty of Law; University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Date Written: January 1, 2014

Abstract

At the same time that Canadian public law jurisprudence has grappled with some very key cases on bias, a vibrant debate has also raged over the meaning and scope of the notion of impartiality within political and moral philosophy. Spurred by Rawls’ view of liberalism and culminating in deliberative democracy, this debate evolved over a span of more than four decades, yet, rarely, if at all, is this philosophical literature referred to in the public law jurisprudence dealing with impartiality. This paper inquires into whether the debates surrounding impartiality in political and moral philosophy and those in Canadian public law share common ground. In what ways might this literature and jurisprudence speak to one another? The author argues that knowledge of the two debates challenges us to reconsider the judicial methods by which decision-making impartiality is established. This is particularly so in administrative law. The author proposes a theory of grounded impartiality to be used in Canadian administrative law. The theory requires courts and administrative actors to pay close attention to factors such as administrative actor provenance, shared and local understandings, and the possibility for genuine discourse, to allow for more well-informed, meaningful, and transparent decision-making about allegations of bias. While these factors have been advocated by certain political and moral philosophers as an ideal means for assessing an individual’s claim to the good life, a parallel approach has faced ambivalent reception in Canadian administrative law impartiality jurisprudence.

Keywords: administrative law, impartiality, moral and political philosophy, reasonable apprehension of bias test, liberalism, Rawls, Habermas

JEL Classification: K19, K39, K41, K49, K42

Suggested Citation

Jacobs, Laverne, From Rawls to Habermas: Toward a Theory of Grounded Impartiality in Canadian Administrative Law (January 1, 2014). Osgoode Hall Law Journal 51:2 (2014), pp. 543-594; Osgoode Legal Studies Research Paper No. 7/2014. Available at SSRN: https://ssrn.com/abstract=2386301

Laverne Jacobs (Contact Author)

University of Windsor - Faculty of Law ( email )

401 Sunset Avenue
Windsor, Ontario N9B 3P4 N9B 3P4
Canada

HOME PAGE: http://www.uwindsor.ca/law/ljacobs

University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law ( email )

Boalt Hall
Berkeley, CA 94720-7200
United States

Register to save articles to
your library

Register

Paper statistics

Downloads
140
Abstract Views
870
rank
205,593
PlumX Metrics